Legislating for Headlines

6 May 2014

This article – bar a few changes – was originally published elsewhere in February 2012, in response to calls for the maximum jail term for causing death by dangerous/careless driving to be raised from 14 years to life, in line with other homicidal offences.

Headlines

This follows campaigning from The Times, the CTC and others demanding that – amongst other things – the maximum sentence for causing death by dangerous driving should be lifted from 14 years to life, to come in line with other homicide offences.

There’s some sense in removing such anomalies (though some would argue there would be more sense in simply applying the offence of manslaughter rather than driving-specific legislation), but I don’t believe it will achieve anything.

Other charges are available

Firstly there’s the fact that in cases which are particularly severe and/or carry intent to harm, other charges may be used. One example that springs to mind is that of Carl Baxter, who intentionally reversed his Range Rover into a cyclist towing his daughter in a trailer. He was found guilty of two counts of GBH as well as dangerous driving. Nevertheless, he still only received two years’ imprisonment.

Whilst this is precisely the sort of lenient sentencing that the proposal seeks to address, it would seem that in these cases the law already has ways of applying a more severe charge — the question here probably less concerns the maximum possible sentence and more the actual sentence given (and potentially also the charges brought: deliberately driving a Range Rover at speed into a young child arguably looks like attempted murder).

But that’s by the by.

Missing the point

The thing is, maximum sentencing is not really the problem. Changing the maximum sentence for any homicidal driving-related offence makes a difference where the driver has caused a death by dangerous or careless driving and the circumstances are severe enough to attract the maximum sentence.

More importantly, changing the maximum sentence for causing death from 14 years to life would only have averted the death if the driver weighs up the sentencing prior to causing the death and concludes that although 14 years would be acceptable, life is enough to be a deterrent – and even that assumes forethought on the part of the driver.

In reality that last point is a total non-issue. Driving-related deaths are almost exclusively caused by ineptitude of some sort (see below), not by premeditation. Acts like those of Carl Baxter are fortunately rare; and even then, they are generally premeditated only in the heat of the moment: I somehow doubt anyone has sat down and drawn out a risk matrix to decide whether or not they should run someone over.

Finding the point

The real problem is not one of malice or intent. The real problems are those which markedly raise the risk of a non-malicious individual causing a collision:

Poor anticipation and hazard perception: assuming a road is clear beyond a blind corner, overtaking with insufficient visibility of oncoming traffic, failure to give a cyclist enough room to swerve if necessary for potholes etc.

Other incompetence: inadequate spatial awareness, lack of control of the vehicle, and so on.

All of these are real risks that result in real incidents, real injuries and real deaths. All of them can, and do, involve people who mostly, in the context of the incident, have no malicious intent whatsoever.

This is why there is currently a lower jail term limit for road deaths: they are mostly not malicious or premeditated, and where they are, other charges with longer custodial sentences can be applied.

The point, then, is to see that our society has become far too tolerant of dangerous road use – a blurring that is written in statute itself, given that actions which present clear and potentially fatal danger to other road users are labelled as simply “careless”.

The problem is not that someone isn’t in enough hot water after someone has died. The problem is that that person’s competence has reached such a low level that someone has died.

To put it another way, we need to understand that these deaths and injuries do not occur because people set out to cause them. They occur because we let people set out without sufficient intent not to cause them.

The solution

The solution is, in no small part, to become intolerant of these distractions and incapacitations and inadequacies. As a society, we are getting there. Most people are already pretty revolted by drink driving. Many have a similar opinion about mobile phone use (though I see drivers on the phone on a pretty much daily basis). Others…? Not so much.

The only potential legislative solution is to teach everyone that these inattentions and incompetencies are not tolerable; to emphasise how dangerous they are before someone dies.

One key tool would be to have a mandatory ban for all offences directly related to road safety, with a minimum period for each type of offence, even if it’s very short (though with sufficient sentencing guidelines there seems little need for an upper limit).

A ban would have far more impact than a paltry £60 fine, or points that have no effect beyond insurance premiums until at least 9 have been accrued. It is palpable for all, and it carries a clear message.

Another legal tool would be for a driving licence to be forfeit on the imposition of a ban, and a new one to be issued on passing a retest.

A further tool would be for the punishment for driving whilst disqualified to be extremely severe: to drive whilst disqualified is a premeditated and intentional act, and here a deterrent can work. And there’s no need to be lenient: it’s really not hard to avoid getting into a car and turning the ignition on.

Another obvious tool would be to abolish the “exceptional hardship” plea: if anyone’s licence is that important, they should look after it, and there’s no reason why they should be held to lower standards than the rest of us.

If the threat of not driving is constantly hanging over all of us, we would all be less blasé about those marginal drops in standards that we all make, and all get away with… until the one time we don’t.

Being more strict with driving offences is all well and good, but let’s do that in a way that actually makes a difference to road safety rather than just making headlines.

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Comments

I love your blog. Your argument here as elsewhere is clear and compelling. I wish people would listen to you. Yet I disagree fundamentally with your solutions. The real solution is to segregate cycling. Everything else is secondary.

I’m all for Dutch-quality segregated infrastructure. But a lot of articles, notably this one, are about matters which would still be pertinent even if motor vehicles never mixed at all with either cycling or walking traffic (which, even in the Netherlands, happens frequently).

People are still injured and killed in cars as a result of poor driving, whether others’ or their own. There is no reason not to continually seek better standards of behaviour.

I don’t want to be injured in a car any more than I do on a bicycle or on foot.

David, you can segregate cycling in some places but I’m riding along the Way of the Roses right now, a coast to coast route almost all on country lanes and minor roads. It’s reasonably safe but I’ve seen enough idiots overtaking on the approach to blind bends to last me a lifetime. It’s neither possible or sensible to segregate cyclists on this route.
And segregated cycling does not make it safe for children or the rest of us to cross the road or protect you when somebody collides with the car you are in.
It’s not about cyclists.

There’s always a problem with these sorts of laws, which is we can’t quite be clear as society if we’re punishing the act or the consequence. If I text while driving, is my act more acceptable because I wasn’t unlucky and nobody died? Your reasoning would suggest not. But can we follow that through: so that someone who kills a child in the same situation is treated identically to someone who doesn’t? Somewhat more leniently than now, perversely.

This is very much devil’s advocate against a line of reasoning that I broadly accept – I feel that your ultra-rational focus on pragmatic effects and prevention skates over the more radical consequences of the argument. We can apply the same questions to a driving ban as to any punishment: recidivism and deterrent.

Recidivism: one good reason to ban the ‘ordinary driver’ who negligently kills someone is that the accident means that they’re more (not less) likely to kill someone again, so they shouldn’t be on the roads. But is there any evidence to suggest that? Reading your piece again, you may simply answer “no” – for you it’s all about…

Deterrent: the other argument, as you mention, is that it would be a deterrent. I can see it would be a deterrent if people are regularly getting ‘zero tolerance’ bans for small acts of negligence. I think that’s the main point of your piece and I agree with it (if we can get there). I’m wondering about the extreme accidents: as you say, nobody really expects to kill someone so there seems to be little deterrent value for lifetime bans where someone dies. So again: it seems they should be treated more leniently than now, which seems odd.

Perhaps that’s not the point, it’s simpler than that – there need to be some visible bans so there’s a deterrent, and those bans must be linked to fatalities?

I think the answer to my question is some things are more important than consistency.

On the matter of consequence vs actions, I agree with what I think you’re saying, which is that to treat offences entirely independently of consequence would be a huge mistake. Not only because it would be universally seen as excessively punitive of the many and inadequately punitively of the few, but also because these things are not black and white: despite committing the same offence, a driver using a phone at 60mph on the inside lane of a quiet motorway does not present the same danger as one doing so at 30mph in an urban area populated by people on foot and on bicycles.

On the matter of evidence of the likelihood of killing someone, to me this boils down to the basic issue of innocent until proven guilty. If found guilty of causing death, someone has proven themselves incapable of conducting themselves safely prior to the collision. (That last point is key: one might reasonably hypothesise that some or many of those who have already killed are, through mental trauma, actually less likely to do so again than those who have not.)

To my mind the central aim of road law is simple: to protect people. To do so, we have to employ the best understanding of the risk profile we have, which will always be flawed. Which implies the following:

When people are seen to exhibit behaviour that increases risk to others, we should deal with it in a way that minimises recurrence.

We should employ some form of measurement to ensure that such risk is being reduced (or, more pragmatically, that such behaviours are not being repeated).

When people demonstrate abject failure to avoid such behaviours, we should remove them from harmful vehicles until such time that they can (as far as possible) prove fitness to drive them.

All of the above should serve to reinforce to all drivers that behaviour is critical to safety and that certain behaviours are specifically detrimental to it.

In my opinion that means effective punishments for all cases of dangerous behaviour (eg using a phone), retesting on a regular basis and following any safety-related offence, and lengthy bans and extensive retesting for those who commit consequential offences.

(On top of that we have wilful offences such as driving whilst disqualified or leaving the scene, which should be dealt with in a punitive manner because the volition means a deterrent is viable.)

But I think we broadly agree. The devil is in the detail and there is no single right answer. Thanks for the comment.

Yes, you covered a point that had bothered me: I think people are basically well-intentioned but flawed, and it seems entirely possible that the average person who then kills by a small act of negligence is *less* likely than average to drive dangerously again. This isn’t like other crimes where a previous offender is more likely to reoffend. At least, I assume that’s true, I’ve never seen any data. If it is indeed true, the notion of ‘good drivers’ vs ‘bad drivers’ implicit in the lifetime ban may even be counterproductive.

But these things can’t be perfect, and even if we ignore re-offending, deterrent would imply a ban as you say.

Indeed. Being found at fault in a serious collision is evidence of having previously been negligent, but not necessarily of being either inherently more dangerous than others whose dice have not rolled so badly, nor of being equally negligent after the event. However, given the wide range of people’s psychological reactions, the minimum reasonable course of action seems to be to accept that they present a high risk, remove them from the roads (rather, from harmful vehicles – a crucial difference) and stringently ensure their competence before any return.

Relatedly, we should recognise that phrases such as “momentary lapse of concentration” are disingenuous, in that they almost always actually point to a chronic shortage of concentration which happens to have been combined with a particular roll of the dice.

Putting aside these important nuances, I find it extremely helpful that I can point to a specific case in our local newspaper, of a local driver who killed a pedestrian while texting and went to prison, if I want to explain why texting is unacceptable. The fact that the court gave a prison sentence brings everything into focus, saying that somebody died doesn’t have the same moral force because it doesn’t establish responsibility.

Your point about whether longer sentences are a deterrent ‘in the heat of the moment’ has validity but is surely a general point in relation to sentences in general, rather than being specific to the motoring case? In this specific case what is wanted is consistency with other offences that don’t involve cars – the argument about sentencing in general is a different topic.

And I think a relevant point is that longer sentences are as much about incapacitation as deterrence. The longer they are in prison, the longer it is before they are out and endangering others again (specifically, endangering _me_). Given the seeming near-unenforcability of driving bans that would seem relevant in such cases.

If only it were possible to both give and enforce serious, life-time, driving bans for those who have shown they lack a sufficient sense-of-responsibility to earn the privilege of wielding a weapon like a car, I would be hugely more relaxed about sentence lengths.

I have only just seen this posting. I entirely agree with your proposed solutions.

The only point I’d take issue with is your second line, where you suggest that “CTC”( as we were then known, now Cycling UK) had campaigned for an increase in the maximum sentence for causing death by dangerous driving. That is not the case.

Our campaigning, like yours, places its primary emphasis on the greater use of driving bans – with prison being reserved for more serious offenders who are likely to present a continuing danger to the public if not locked up.

Like you, we argue for the use of driving bans primarily to protect the public from those who, for whatever reason, have demonstrated a failure to drive safely. When jurors are faced with drivers accused of offences they know they could easily have committed themselves, I suspect they’d be more willing to convict for a ‘dangerous’ driving offence if they thought the driver was likely to face a long driving ban, rather than prison. And if driving bans became much more widely used, I suspect this do as good a job of deterring bad driving as any other sentencing option you could contemplate.

Meanwhile prison should still be the main sentencing option for those whose driving was more obviously reckless, or whose past records suggested that they were likely to present a continuing danger if not locked up – again, for public protection. That particularly includes those who have breached past driving bans.